Waste Bill [B39-2007]& Integrated Coastal Management Bill [B40-2007]: Department briefing

Meeting report

ENVIRONMENTAL AFFAIRS AND TOURISM PORTFOLIO COMMITTEE
20 November 2007
WASTE BILL & INTEGRATED COASTAL MANAGEMENT BILL: DEPARTMENT BRIEFING

Chairperson: Mr Langa Zita (ANC)
Acting chairperson: Mr D Maluleke (ANC)

Documents handed out:
National Environmental Management Waste Bill [B 39-2007]
Draft National Environmental Management: Waste Bill [B 39B-2007]
Integrated Coastal Management Bill
Comments Received on Integrated Coastal Management (ICM) Bill
Integrated Coastal Management Bill: a brief guide to assist the public participation process

Audio recording of meeting [Part 1] [Part 2]

SUMMARY
The Department of Environmental Affairs and Tourism briefed the Committee on the National Environmental Management Waste Bill. This Bill arose from the problem that waste and the pollution emanating from it had not previously been dealt with in a focused way. This Bill attempted to deal with issues, to guide South Africans away from the “throw-away” society, and attempt to get everyone responsible for their waste. There had been extensive participation in the Bill’s drafting. It was based on the principles set out in the National Environmental Management Act. Waste had been defined, but by-products of production processes that could be re-used, and recycled items, would not be considered waste. The Bill would also apply only to waste that was not dealt with in other legislation. The Department had considered what needed to be done to maintain economic consistency. Waste management officers would be appointed. Clauses dealing with priority waste were inserted. The legislation aimed to drive a waste minimalisation approach. Certain waste activities would require a licence. Waste Management Plans were to be drawn up by industry and certain organs of state. There were new concepts dealing with contaminated land. The Department would be the competent authority for hazardous waste facilities. However, there were other sections in the legislation that gave powers to other Departments, such as Water Affairs and Forestry, as it was recognized that ultimately pollution would affect water.

Members asked whether National Treasury were happy with the cost implications, whether the Department of Trade and Industry had been consulted, about the economic potential of the waste industry in South Africa, and whether there was money available for separation of waste. The Committee questioned closely what were the policies on waste by retailers, in particular clothing retailers, and would like some research results to be presented. Mining waste and the future strategy for this were also raised. The Committee was cautious that the European waste framework would not necessarily apply to South Africa, and urged the need for rural solutions also.

The Department then briefed the Committee on the Integrated Coastal Management Bill It sought to address challenges not dealt with adequately in the past, by setting a new approach to managing coastal resources to promote social equity and best economic use, while protecting the environment. The Bill took into account natural coastal processes and provided for demarcation of the coast, adjustment of zone boundaries according to the sensitivity of the coast, set-back lines, and control of certain activities via stricter Environmental Impact Assessments. It also aimed to improve the Department’s access to the coast, required demarcation of land and proper maintenance by municipalities, and enabled expropriation in accordance with the Expropriation Act. Inadequate control of pollution in the past was addressed by stricter controls, and clarification of the roles of the Departments of Environmental and Water Affairs. An integrated institutional framework with wide representivity was created. The Bill now would create coastal zones, but with proper protection to existing property rights, provincial, municipal or cadastral boundaries. There had been a full consultative process and stakeholder comments were taken into account.
Members raised questions on the question of erosion, the implications on future development, rising sea levels and the property rights of existing owners.
 on future developments in those areas.

MINUTES
National Environmental Management: Waste Bill [B 39-2007]: Briefing by Department of Environmental Affairs and Tourism (DEAT)
Ms Joanne Yawitch, Deputy Director General, DEAT, briefed the Committee on the National Environmental Management Waste Bill (the Bill) and said the legislation had been in the making for many years. She said there was a large and complex problem pertaining to waste management in South Africa. Most of it stemmed from the fact that waste and its consequent pollution had never been dealt with in a focused way. This legislation attempted to deal with those issues. South Africa was a “throw away” society, and most people did not consider what happened to the things that they threw away. DEAT was aware that implementation of this legislation would not happen overnight.

Ms Yawitch stated that the Bill had gone through an extensive public participation process. It was gazetted for comment from 12 January to 12 April 2007. During the drafting process in 2006, there was extensive consultation in government and with stakeholders before the Bill went to Cabinet. In some provinces there was more than one workshop. There was a major government waste conference in March this year, NGO consultations, meetings with business and industry as well as discussions with the recycling sector and with the largest waste generators in industry. Consultations were also held with the Institute of Waste Management of Southern Africa. Bilateral meetings were held with the Departments of Water Affairs, Trade and Industry, and National Treasury, amongst others. 69 written submissions were received and studied. The Chief State Law Advisors had certified the Bill in terms of its constitutionality.

The challenges in waste management and pictographic examples of some of the problems were given in detail in the presentation (see attached documents)

In relation to the interpretation, there was a debate about whether the Bill needed its own set of principles. DEAT decided that the principles set out in the National Environmental Management Act (NEMA), would be applicable to the Bill. NEMA’s Chapter 2 contained the principles of environmental management. She stated that there had been a debate about what the definition of waste was to be. DEAT finally settled on the definition set out in the definitions clause of the Bill. She stated that a caveat had been included in the definition after consultation with the recycling industry and industry. The caveat, in d (i) and d (ii) of the definition, was to the effect that a by product was not considered waste and any portion of waste, once re-used, recycled and recovered, ceased to be waste.  This was intended to cater for situations with certain industrial processes where by products were produced that could then be used directly into another production process.

Ms Yawitch noted that Clause 4 of the Bill was inserted in response to public submissions. She said that there was a situation where certain kinds of waste were dealt with under different legislation. DEAT had therefore limited the application of the Bill so that it would apply only to the extent that the waste stream was not dealt with under another piece of legislation.

The national strategy was the master plan that would guide the implementation of the legislation.

In clauses 7, 8, and 9 DEAT set out the provisions to provide for the provincial norms and standards. She said DEAT had been careful to ensure that it did not infringe on the mandate of local government, and that it did not go beyond its own constitutional mandate with regard to setting up norms and standards in a national framework. She drew the attention of the committee to Clause 9 of the Bill.

Ms Yawitch noted that waste management had major implications for the economy. She said DEAT had considered what needed to be done nationally in order to maintain economic consistency in relation to matters that would have an impact on the economy. The approach had been that if something were done differently in two different provinces, this would create some level of economic distortion, so that matters needed to be regulated at a national level. The Bill noted that certain things had to be done with or after consultation with another Minister - for example the Minister of Finance, or of Trade and Industry, or of Local Government.

Chapter 3 of the Bill set out that every organ of state that dealt with waste management as a part of its regulatory activities must identify a waste management officer. The public could contact such a person regarding waste management, and this person had to be held responsible for ensuring that issues were responded to.

Chapter 4 dealt with a wide range of waste management measures. The first part provided for a Minister to declare a priority waste, which would not necessarily be large quantities of waste, but rather would be something that had become a serious problem, such as a waste stream that had become toxic. Once a declaration of priority waste had been made, then waste could be dealt with in a particular way. The second part of the chapter dealt with a general duty for waste holders. This was a new concept not previously set out in law. It basically stated that every person was responsible for how they dealt with their waste. She said part three of this Chapter was also new. Legislation was being used for the first time to drive a waste minimalisation approach. The purpose of clauses 19 and 20 was to provide in detail what waste management activities would require a license. The purpose of clauses 21 to 25 was to outline the requirements for storage, transportation and collection of waste. She drew the attention of the Committee to clause 23(2) and said that municipalities were obliged to provide containers so that recyclable waste could be collected. She further highlighted clauses 26 and 27, which she said prohibited unauthorised disposal, which consisted of illegal dumping and littering. On the municipal level DEAT had a prohibition on littering and illegal dumping, but this gave a much broader enabling framework within national legislation.

Clauses 28 to 34 provided for the preparation, contents, consultation, consideration and review of industry waste management plans (WMP). She said that the purpose of industry WMP was to provide for industry, and certain organs of state, to set out how they would deal with the waste they generated. She said that the Chapter was an enabling framework, which allowed the sector to compose a plan. It would also allow government to identify where waste was not being used effectively in a particular sector, and gave the power to government to require that a plan should be produced. Industry WMPs could be prepared by the provincial Department of Environmental Affairs on behalf of industry, and the costs of such a plan could be recovered under clause 29(4)(a).

Ms Yawitch noted that the clauses that dealt with contaminated land, were completely new in South African legislation, and provided for remediation of contaminated land. Clauses 35 to 41 set out a procedure, which allowed DEAT to identify an area, investigate whether it was contaminated and work out how serious the contamination was, and provide an assessment report, which would be looked at by government. DEAT could then decide on the form of remediation. She said that there was to be a register and any land that had been contaminated, and then cleaned, must be listed.

Ms Yawitch noted that there would obviously be cost implications to the Bill. The Department took the view that there was a cost, but it must be allocated and shared between the people who were responsible for waste.

Chapter 5, dealing with licensing of waste management activities, was one aspect of the legislation that had not been written at a framework level. The reason for this was that DEAT's experience over the last ten years had been that in order to license effectively, there must be power to do so in the legislation. Therefore DEAT had opted to include a detailed section on licensing. She said the Chapter allowed the Department to be the competent licensing authority for hazardous waste facilities, because of the environmental risks that stemmed from them. The provincial departments could license general waste facilities.

Chapter six provided for the gathering of waste information by government, to be able to monitor the effectiveness of initiatives of policies and strategies.

Chapter 7 dealt with compliance. Here DEAT had done something different to other compliance provisions in other pieces of legislation. The powers to enforce compliance had been given to the Minister of Water Affairs and Forestry, in respect of waste-related issues that could impact on water resources. She noted that there was a consultation process.

Chapter 8 dealt with general matters, and provided for regulations. The Bill was the regulatory framework and a number of regulations would be needed to allow it to function effectively.

Chapter 9 allowed for delegation by the Minister and the MEC, repeal and amendment of legislation, and transitional provisions for permits

Discussion
Mr G Morgan (DA) asked for the view of National Treasury on the Bill.

Ms Yawitch said that the Bill had gone to Cabinet twice. After the first presentation to Cabinet it was amended, and then it was returned to Cabinet. In between the two presentations there were bilateral discussions with departments and written comments were incorporated. National Treasury was content with what had been stated in the legislation.

Mr Morgan wanted to know the view of the Minister of Trade and Industry, particularly with regards to clause 17 of the bill.

Ms Yawitch said that Department of Trade and Industry were happy with the legislation. They had wanted to make sure that it was written in such a way that it did not contravene their departmental obligations, and that had been done. DEAT had to deal even-handedly with waste as a commodity, and ensure that there was one set of rules. She said that had been addressed.

Mr Morgan asked Ms Yawitch to offer a comment on Chapter 7 of the bill, which gave the department the power to investigate waste producers if they undertook activities that they were not permitted to do. He wanted to know how the matter was being dealt with currently.

The Chairperson asked to be informed of the economic potential of the waste industry in South Africa.

Ms Yawitch said that internationally, in both the third world countries and the developing world, waste was being perceived as a useful commodity. She said that even in South Africa cans and paper and other items were being recycled. She said it was necessary for South Africa to implement a framework around recycling which would safeguard the health of the people.

The Chairperson asked what the cost implications of the separation of waste were and whether there was money available for that. He questioned whether the strategy proposed, was not better suited to first world countries. He wanted to be informed about strategies in other third world countries.

Ms Yawitch said that indeed there were some cost implications but by separating the waste DEAT would be ensuring that the waste could be used to generate an income in the long run.

The Chairperson said in the initial briefing the issue of economic waste had been mentioned, but the Bill did not cover it. He said that an example would perhaps be that the winter season was coming to an end and the major retailers would not sell the same clothes next winter that they had on offer this winter. He wanted to know what would happen to those clothes.

The Chairperson also asked how the Bill dealt with the present problem of mining waste, and what the future strategy would be.

Ms Yawitch said a definition of mining waste did come under the legislation. Mining dumps themselves had been excluded but all the other waste on the mine was included. The Department of Minerals and Energy (DME) had asked for mining dumps to be excluded from the bill.

The chairperson asked what the motivation was for this request.

Ms Yawitch responded that often the mining dumps got reprocessed, as part of the mining operation, and the definition of waste as contained in the Bill excluded by products that could be used again. She said the argument had been that mine dumps were getting reprocessed and were dealt with under rehabilitation provisions in different legislation.

Mr Maluleke (ANC) also asked where surplus products, which had become waste, would be dumped.

Ms Yawitch responded that she did not know where the entire surplus was dumped. She said she did not know what happened to the left over clothes from retailers. She said that this legislation was trying to ensure that the illegal or uncontrolled dumping of products would not occur.

The Chairperson said that the Committee would like research to be undertaken so that the Committee could get an in-depth answer on what happened to surplus goods. He stated that in India there was a secondary market, whereby things that other people did not want would be sold to poorer people. He did not believe that items should not be thrown away if there was someone who stood to benefit from having them. He said that the Committee would be reluctant to finalise a Bill on waste that did not address the retail shops and how they were operating. He cautioned against asking questions that Europe was asking on the matter because South Africa was a third world country, and so the European waste framework would not look at what South Africa needed to look at.

Ms Yawitch stated that there was a need to look at what was working across the world. She said that in Brussels there was a scheme where people were encouraged to keep chickens and goats in their back yards, because this resulted in food self sufficiency, and support for schools and orphanages. She said that the legislation was trying to make sure that it had an enabling aspect, which allowed DEAT to pick up on the best practices which were taking place elsewhere.

Mr C Greyling (ID) made a few comments. He stated that the Committee needed to think laterally to come up with a solution for waste disposal in rural areas. He stated that products were being dumped in pristine areas because people had no further need for them. Mr Greyling also said there was a need to look into the copper trade in South Africa because that was a huge issue.

The Chairperson said he had heard that there was work being undertaken on mine dumps. He asked whether DEAT thought a time would come when the mining industry would take responsibility fully for the dumps. He said mining was doing well globally, so the mining companies should take responsibility for what they had done to the environment.

Ms Yawitch said that it was important to look at the application of the legislation. DEAT had said was that it would not apply to certain matters regulated under other Acts. For example, this Bill would not apply to the disposal of explosives, which were dealt with under the Explosives Act, or the disposal of animal carcasses regulated by the Animal Health Act. Some mine dumps were being reprocessed whereas others were not. The argument had been that when mines were set up the mine companies had to set out, in advance, how the dump was going to be dealt with when the mining operation was concluded. She said that DEAT had decided not to regulate the matter twice.

The Chairperson said that the matter had to be dealt with. The mines had had a detrimental effect on the environment over the past 150 years and the mining companies could not ignore the matter.

Integrated Coastal Management Bill (ICMB): DEAT briefing
Mr Monde Mayekiso, Deputy Director-General, DEAT gave a presentation to the Committee on the Integrated Coastal Management Bill (ICMB). He noted that the coast contributed 35% of the country’s gross domestic product, and world wide 60% of the population lived along the coast. This Bill sought to address challenges not addressed in the past, by setting a new approach to managing coastal resources to promote social equity and best economic use, while protecting the environment. There would be integrated management of the coastal zone and a framework for management of activities.

Mr Mayekiso noted that challenges included the natural coastal processes caused by wind, waves and currents, which resulted in sediment movement. Climate change and rising seas were another factor. Previous planning had not considered these factors, and consequently there had been challenges with erosion along the coast at Langebaan and St Francis, storm damage on the Kwazulu Natal coast, and wind-blown sand.

Mr Mayekiso noted that the solutions must therefore take these factors into account. Mechanisms employed by the Bill included demarcation of the coast, adjustment of zone boundaries according to the sensitivity of the coast, set-back lines, and control of certain activities via stricter EIAs. Other challenges had included limited access to the coast, caused by farm land, property development, mining areas and illegal closing of servitudes. The Bill therefore aimed to improve DEAT’s access to the coast, required demarcation of land and proper maintenance by municipalities, and enabled expropriation. The challenge of inadequate control of pollution was being addressed by stricter assessment of existing waste disposal pipelines, strict controls over new sea outfalls, clarification of the roles of DEAT and the Department of Water Affairs and Forestry, and alignment of the legislation to best practices, controlling, amongst others, dumping at sea and incineration.

Previously planning had stopped at the high water mark, and there had been fragmented planning and decision making. Now the Bill aimed to create an integrated institutional framework with wide representivity. The National Coastal Management Committee would be chaired by DEAT, and would have four provincial coastal committees, with local representation. Some of the regional and local coastal committees were already functioning. This wide participation would allow for agreement on a common vision, objectives, priorities, strategies and norms and standards.

There had previously been inadequate control over activities affecting the coast. Agriculture and leisure activities had resulted in damage to dunes, damage to wetlands and indigenous vegetation and changes to water affecting estuaries. Development activities had been improperly managed, so that structures and infrastructure were often erected in inappropriate places. Coastal zones were now being created, being coastal public property (the sea, beaches and adjoining State land) and coastal protection zones (100 metres above the high water mark in urban areas, and 1 000 m above the high water mark in rural areas. This would not affect existing property rights, provincial, municipal or cadastral boundaries. No private property could be expropriated without following the proper procedures in the Expropriation Act. Environmental Impact Assessments would have to consider additional factors in these areas.

Mr Mayekiso briefly discussed the consultative process that was followed on release of the Bill in December 2006. Around 100 respondents had submitted comments. There had been a largely positive response, detailed comments were considered and some changes were made. The State Law Advisors had checked and certified the revised Bill.

Discussion
The Acting-Chairperson of the committee, Mr D K Maluleke (ANC), wanted more clarity on how the presentation addressed the issue of erosion caused by storms, and what would be the implications on future developments in those areas.

Dr I Cachalia (ANC) asked whether the DEAT had taken into account the drawback that rising sea-levels would cause to the inhabited low lying areas in the locality of the coast.

Mr Mayekiso agreed that the presentation did not quite address the problem in question, but was adamant that in future the problem would be considered. He expanded that in these areas building would not be permitted. Mr Mayekiso assured the Committee that it could be scientifically determined as to which locations would be secure to allow building on the other side of a suitably distanced barrier from the coast. This had been dealt with in Chapter 7 of the ICMB.

Mr Maluleka persevered, asking what assurance the residents had to rebuild in these areas. He stressed that it was a historically known fact that in those areas the problem was continual.

Advocate Radia Razack, Director: Legal Services, DEAT, added that any individual who wished to make developments on existing buildings would be safeguarded by the Bill. She noted that the Constitution did not allow any interference with already existing property rights, explaining also that DEAT would be rather unlikely to approve rebuilding in areas that were known to be problematic
 
The meeting was adjourned.